Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park.
But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm "in principle") from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ---- Original message ---- >Date: Thu, 13 May 2010 09:35:34 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" ><mst...@ajcongress.org>) >Subject: RE: A real-life on-campus example >To: <hamilto...@aol.com>,"Law & Religion issues for Law Academics" ><religionlaw@lists.ucla.edu>,"Esenberg, Richard" ><richard.esenb...@marquette.edu> > >Nothing CLS has said challenges Hastings' duty to enforce rules against >its own discrimination on the basis of inter alia sexual orientation or >religion. As Gilmore v. City of Montgomery holds, however, a city's duty >not to engage itself in (there racial) discrimination ) does not >authorize it to deny non-exclusive access to public spaces to groups >that engage in such discrimination. The Court held there that to enforce >non-discrimination rules against such private groups (schools!) would >deny the segregation academies freedom of association. Why isn't Gilmore >controlling here? >Marc Stern > >-----Original Message----- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of >hamilto...@aol.com >Sent: Thursday, May 13, 2010 9:19 AM >To: Esenberg, Richard; Law & Religion issues for LawAcademics >Subject: Re: A real-life on-campus example > >Of course the marketplace works as I described it especially in the US. >Groups thrive and shrivel and respond to and interact with the culture >and if they cannot adapt to broadbased moral and social changes by >changing their beliefs and practices, they become marginalized. Groups >spin off of other groups. >The many religions that supported slavery and the subjection of women >and children to state-sponsored patriarchal control have had to adjust >or choose the sidelines. Hasn't CLS conceded that the school can >enforce race discrimination laws? > >Marci > >Sent from my Verizon Wireless BlackBerry > >-----Original Message----- >From: "Esenberg, Richard" <richard.esenb...@marquette.edu> >Date: Thu, 13 May 2010 12:32:59 >To: hamilto...@aol.com<hamilto...@aol.com>; Law & Religion issues for >LawAcademics<religionlaw@lists.ucla.edu> >Subject: RE: A real-life on-campus example > >The right of expressive association is not a demand for government >protection in the market place of ideas or a demand for government >support. It is, rather, a shield against government compulsion, i.e., >the demand that an organization not define itself by adherance to any >particular creed or that it engage in practices inconsistent with its >expressive message or core beliefs. While in the public forum context, >it might involve access to a government benefit but that is a function >of the government's decision to establish a forum and the (quite >reasonble rule) that, if it chooses to do so, it may not discriminate on >the basis of viewpoint. > >This doesn't immunize religious organizations from the market place of >ideas which, in any event, does not work as she thinks it does. Churches >regularly impose creedal requirements on clergy, leaders and members. If >congregants don't like it, they leave much as those who don't like CLS >policy could leave as well. > >The problem with "takeovers" - whether effected through rules of a >public forum or antidiscrimination laws - is that they would undermine >the capacity of minority or, more specifically, unpopular groups to >associate for a particular expressive purpose because, as soon as they >choose to combine, they must be prepared, in this context, to permit >others to come in and not simply expose their creed to the market place >of ideas (that happens in all events) but to vote it out. > > >Professor Rick Esenberg >Marquette University Law School >Sensenbrenner Hall 321C >1103 W. Wisconsin Avenue >Milwaukee, WI 53201 >(o) 414-288-6908 >(m)414-213-3957 >(f) 414-288-6975 > > >________________________________________ >From: religionlaw-boun...@lists.ucla.edu >[religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com >[hamilto...@aol.com] >Sent: Thursday, May 13, 2010 7:09 AM >To: Law & Religion issues for Law Academics >Subject: Re: A real-life on-campus example > >It is not majoritarian but rather the marketplace. Expressive >association is a new right with little justification in history and I am >beginning to think a large step toward government sponsored >Balkanization Does the government have an obligation to make sure >dwindling religions remain viable. I would say absolutely not. But >apparently Mark would disagree? > >Marci >Sent from my Verizon Wireless BlackBerry > >-----Original Message----- >From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> >Date: Wed, 12 May 2010 19:11:04 >To: <religionlaw@lists.ucla.edu> >Subject: RE: A real-life on-campus example > >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu To subscribe, >unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as >private. Anyone can subscribe to the list and read messages that are >posted; people can read the Web archives; and list members can (rightly >or wrongly) forward the messages to others. > >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu To subscribe, >unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as >private. Anyone can subscribe to the list and read messages that are >posted; people can read the Web archives; and list members can (rightly >or wrongly) forward the messages to others. >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu To subscribe, >unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as >private. Anyone can subscribe to the list and read messages that are >posted; people can read the Web archives; and list members can (rightly >or wrongly) forward the messages to others. >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
